Political discussion and ranting, premised upon the fact that even a stopped clock is right twice a day.

Friday, January 18, 2013

Bar Admission After Two Years of Law School - A Partial Solution or a Huge Mistake?

I am skeptical that anything will come of the proposal, not because of an evaluation of its merits but because it could undermine the system of law reviews - student-edited law journals published by law schools - at all but the upper tier schools, but I think this proposal to allow students to take the bar after completing two years of law school would be a mistake.

The proposal would amend the rules of the New York State Court of Appeals to allow students to take the state bar exam after two years of law school instead of the three now required. Law schools would no doubt continue to provide a third year of legal instruction — and most should (more on that in a bit) — but students would have the option to forgo that third year, save the high cost of tuition and, ideally, find a job right away that puts their legal training to work.

Let's skip ahead to the end:

Some will argue that the two-year option would only create unequal classes of lawyers and glut the marketplace with attorneys who don’t have the skills and training that generations of law school graduates before them have had.

We doubt this will occur.

You doubt that will occur because... Unfortunately they appear to have run out of space before getting to that part.

Seriously, our system already produces unequal classes of lawyers. If you don't have the Harvard or Yale brand attached to you, what are the odds of being appointed to the Supreme Court? The nation's largest law firms focus their recruiting efforts on top tier law schools, and even within those law schools on law review members, and even then they tend to focus on the most elite law journal published by the institution. If you don't have the right job out of law school, the odds of later joining a "BigLaw" firm plummet. If you don't get the right judicial clerkship, the odds of becoming a law professor at a top law school plummet. The difference in employment and career prospects for graduates of top tier law schools are markedly different (and better) than those of graduates from the bottom tier of law schools.

How can you argue with a straight face that a student who drops out of law school after two years will be viewed as an equally qualified candidate as compared to students who graduate? Treated equally, except by law schools looking for professors, judges looking for clerks, law firms looking for lawyers....

The fantasy is that none of that matters:

While this wouldn’t increase the number of available jobs, a two-year option would allow many newly minted lawyers to pursue careers in the public interest or to work at smaller firms that serve lower- or average-income Americans, thereby fulfilling a largely unmet need. As it is now, many young lawyers say they would love to follow this path but cannot afford to because of their onerous debts....

And in any case, the risk ought to be balanced with the varied needs of the American people for legal services.

So... the idea is that although we already have far more law school graduates than available jobs, and although the proposal won't create even one additional job, and even though every single job - including some that can only be described as exploitative - gets flooded with applicants, creating a pool of less qualified applicants will... what? Allow the 2L with a law degree to apply for the public service job he "could not afford" if he completed another year of law school? Why would the public service entity find the drop-out preferable to the many law school graduates who will continue to apply for their jobs? Here's a wild idea: How about expanding the programs that offer loan forgiveness or similar subsidies to students who enter public interest careers?

The suggestion that the drop-outs could "work at smaller firms that serve lower- or average-income Americans" betrays both that they don't believe their own argument about creating "unequal classes of lawyers". They imagine the dropouts would work in low-paying public interest jobs, and for small law firms that offer discount legal services, again at low pay. You know what would be better than telling somebody that you're doing them a favor by letting them drop out of law school after two years, yet still take the bar and then go into a low-paying job? Steering them into a different degree program before they enter law school.

This isn't the first time I've heard the fantasy that if only we could glut the market with lawyers, suddenly quality legal services would be available to the masses. The authors' conceit is that this does not presently occur because the burden of law school debt prevents graduates from taking jobs that "serve lower- or average-income Americans", but those jobs are already being filled.

Is the idea, then, that small law firms serving those populations will pay the drop-outs even less then pass along the savings to their clients? Is the idea that it's so easy to handle divorces, criminal defense, consumer bankruptcies, and the like that the drop-outs will hang out shingles and compete for clients at rock bottom rates - and that the only thing preventing recent law graduates from going solo is the cost of their third year of law school? Having actually started my own solo practice in a past life, I'm having a difficult time relating the argument to the realities of starting a law firm. It's expensive to run a law firm, it's difficult to build and sustain a client base, and you can't make a living representing people who can't afford to pay you. Frankly, if the argument boils down to "You can make maybe $30K a year practicing law out of your apartment," we're back to it's being better to steer students into more suitable graduate programs or encouraging them to seek jobs based upon their undergraduate degrees.

What do the authors believe law schools would do to maintain their revenue stream, were this proposal to go through? You know what I think that they would do? Admit even larger numbers of students. After all, if you reduce the number of students who complete the third year of law school, you reduce your need for law professors, you have a harder time justifying the glorious new law school building, you offer fewer teaching opportunities to your professors outside of the 1L curriculum. I have a difficult time believing law schools would tighten their belts. Law schools aren't as expensive as they are because they need state-of-the-art science labs, medical facilities, computer technology.... The typical law school class involves a professor lecturing a class, or leading a seminar. Law schools charge high tuition because they can, and their administrators and professors enjoy their high salaries.

An alternative approach that would be less likely to create unequal classes of lawyers, and also address the author's valid criticism of the third year of law school, would be to simply shorten law school to a two year program. Law schools could turn the third year into an assortment of certification or LLM programs, allowing students who chose to choose a professorial path, working as law review editors and focusing on scholarship, or to pursue a range of other programs focused on different areas of law or different types of legal practice. That alternative would also put the onus on law schools to prove the value of the third year, rather than creating an illusion of an option - "You can drop out and take the bar" - knowing full well (or, extending the benefit of the doubt, applying a "knew or should have known" standard) that in a competitive job market the vast majority of law students won't take that chance, and that most who did would suffer for it.

1 comment:

Let's not forget that the reality is that most graduates WILL end up in a crappy, low paying job (or hanging out their shingle) because that what is out there. Certainly no one talked about this at my top tier law school but it is definitely the reality.